A Call To Overhaul The Abortion Law Of India

The Supreme Court (“SC”) last month granted permission to a 24-week pregnant woman to carry out an abortion on the ground that the baby was anencephalic, a condition that prevents normal development of the foetal skull and the brain. The baby would survive only in utero and death would be ineluctable after birth. This ruling, however, was an infraction of the Medical Termination of Pregnancy Act, 1971 (“The Act”), which stipulates 20 weeks as the ceiling for terminating pregnancy. The SC’s logrolling, however, is yet another call to deliberate and revamp the extant archaic Act, and to transform the Act so as to shift the focus of the Act towards women and her interests.

The Act in its present form, permits a woman to terminate her pregnancy if one registered medical practitioner (in case she is upto 12 weeks pregnant), or two registered medical practitioners (in case she’s 12 to 20 weeks pregnant) opine that the pregnancy risks her life, or poses grave injury to her physical and mental health, or if there is a substantial risk that if the baby is born, it may suffer from such physical or mental abnormalities as to be seriously handicapped. The Act thus thrusts the power of decision-making on medical practitioners, expropriating women’s right to autonomy and self-determination.

When a woman is beyond 20 weeks pregnant, the pregnancy may be terminated only if it’s immediately necessary to save her life. The baby’s physical and mental health, which is a ground to terminate pregnancy prior to 20 weeks, is no ground to terminate pregnancy post 20 weeks. This artificial distinction, however, is hardly rational, for medical opinions suggest that several foetal faculties develop much later than the 20 week period. Likewise, several foetal abnormalities become conspicuous only during late-term pregnancy. The Act must empower women to exercise her choice on whether she wants to abort the pregnancy even beyond the 20 week period.

The extant Act is strikingly constricted in scope for it discounts a whole range of factors which compel a woman to terminate her pregnancy much later than the 20 week period. For instance, when there is a sudden change of personal circumstances like separation from, or death of the partner, the woman might not be in a position to raise the child single-handedly due to several reasons. There are also instances where women don’t even realize that they are pregnant until much later in the term, as they’re using contraceptives, or their periods don’t stop, or they are menopausal, etc. These situations, although fallible, reasonably impel them to rule out pregnancy.

There are also psychological factors like living in denial, until a time when it’s too late when they finally gather the courage to even think of abortion. In the case of unmarried women, it is even more common to conceal pregnancy over long durations, owing to an ultra-conservative and a taboo-replete society. Very often, kith, kin, and friends of the woman dissuade her from pursuing abortion. Considering the umpteen number of factors which are at play, it is hardly fair that women are coerced into carrying their unwanted pregnancy to full term, just because the legally stipulated 20-week mark stands breached.

Notwithstanding the legitimate arguments of pro-child proponents who expostulate the morality of aborting a viable life, it is a well-established law that ‘right to life’ spelt out in Article 21 of the Constitution entails right to live with dignity. A woman who’s certain that she will not be able to fulfil basic needs and raise her child with a life of dignity she envisions must be facilitated to exercise her right to reproductive freedom, which also is an integral facet of Article 21. Moreover, when we are procrastinating legislating on marital rape owing to the morality of the cause and personal space, how is curtailing the reproductive freedom of a woman by any standard moral?

In any case, the draconian provisions of the Act have been coercing women to access abortion services through backdoor channels, further affecting the bargaining power of vulnerable women. Making the abortion law more inclusive will unequivocally contribute to better and hygienic abortion services and reduce the maternal mortality rates.

The SC, even in the recent past, has come to the rescue of women who sought termination of pregnancy beyond the 20-week ceiling. In 2015, by overriding the judgment of the Gujarat High Court, the SC recommended a medical panel to decide whether abortion was in the best interest of a 14-year-old rape survivor who was 24 weeks pregnant. In 2016, on the recommendation of a medical board, the SC granted permission to terminate a pregnancy, on account of the fact the 24-week foetus had multiple congenital anomalies which posed a grave danger to the physical and mental health of the mother. At the very least, these precedents must trigger political will to move amendments to the Act. Until then, women in their trimesters are pressured into running from pillar to post within the maze of judiciary, further aggravating the trauma.

The first step towards undoing the historical wrong inflicted upon women is to deliberate upon the draft of the Medical Termination of Pregnancy (Amendment) Bill 2014put forth by the Ministry of Health and Family Welfare, and pass the amendments at the earliest, thereby freeing women from subjective and arbitrary interpretations of the Act. The amendments propose that until 12 weeks of pregnancy, the woman alone can take a call on abortion without the recommendation of a registered medical practitioner. If she’s between 12 to 24 weeks pregnant, one registered medical practitioner must recommend it based on the health of both the mother and the child. If she’s more than 24 weeks pregnant, pregnancy may be terminated if the foetus suffers from substantial foetal abnormalities. Although there’s a long way to go, the proposed amendments are at least in the direction of kick-starting the process to frame an inclusive and women-friendly piece of legislation.

While the current political dispensation has pro-actively initiated a number of schemes targeting women like Beti Bachao Beti Padhao scheme addressing female foeticide and education; the Ujjwala scheme addressing trafficking and sexual exploitation; the Indira Gandhi Matritva Sahyog Yojana, a conditional maternity benefit scheme etc., one of the most significant women-centered bills is still lying dormant in the Parliament.

It is high time that the Government takes a cue from the proposed amendments and the judicial precedents, and passes the requisite amendments to the Act on a priority basis.

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Darshan Ranganathan was the most distinguished organic chemist of her times in India, with multiple publications in The Journal of the American Chemical Society, Journal of Organic Chemistry and many notable others.

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